Dineshkumar Amritlal Modi vs Divisional Controller Shri
2021 Latest Caselaw 6947 Guj

     C/SCA/1653/2013                              JUDGMENT DATED: 25/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1653 of 2013


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE DR. JUSTICE A. P. THAKER

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1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          Yes

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                        DINESHKUMAR AMRITLAL MODI
                                  Versus
                   DIVISIONAL CONTROLLER SHRI & 1 other(s)
================================================================
Appearance:
MR NB TIWARI(1121) for the Petitioner(s) No. 1
MR SOAHAM JOSHI AGP (1) for the Respondent(s) No. 2
MR HARDIK C RAWAL(719) for the Respondent(s) No. 1
================================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 25/06/2021

                              ORAL JUDGMENT

1. The petitioner - workman has filed this petition under

Articles 14, 19, 21, 226 and 227 of the Constitution of India for

the following reliefs:

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

A. Your Lordships be pleased to pass appropriate writ, order or direction to quash and set aside the Judgement and Order dated 6-11-2012 passed in Reference (L.C.J.) No.17/08 by the Presiding Officer, Labour Court No.1, Jamnagar.

             B.        Your Lordships be further pleased to direct the
                       respondent     to    reinstate    the     petitioner

immediately with full back wages, all related benefits and rights, with continuity in service.

C. Pending admission, final hearing and disposal of this petition, the order mentioned in this pryer clause A be stayed and secondly interim reinstatement of the petitioner be ordered.

D. Any other relief deemed just and proper may also be kindly granted.

2. Heard Mr.N. B. Tiwari, learned counsel for the petitioner,

Mr.H. C. Rawal, learned counsel for respondent No.1 and

Mr.Soham Joshi, learned Assistant Government pleader for

respondent No.2 - State at length through video conferencing.

3. Mr.N. B. Tiwari, learned counsel for the petitioner has

vehemently submitted that the petitioner was appointed as a

conductor in respondent - Corporation and at that time, he has

produced certain documents which were verified by the officer of

the Corporation. He has also submitted that the petitioner was

appointed in the S.T. Bus services at Mehsana and, thereafter, he

was transferred to Dwarka Depot. He has submitted that the

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

Corporation has issued charge-sheet against the workman -

conductor on the ground that at the relevant time, he has

submitted false certificate of having taken training for First Aid.

According to him, the workman has submitted the said certificate

from "St. Jon Ambulance Association" and he has already

undergone training of First Aid. He has submitted that in the

departmental inquiry, the person from the said association was

not examined and an opportunity of leading evidence was not

provided to the workman. He has submitted that the observation

of the Corporation as well as the Labour Court that due to

alleged false certificate of First Aid, there is financial loss to the

Corporation is erroneous. He has submitted that the petitioner is

victim as the person from the said association has provided the

certificate after taking Rs.400/- from him, and the petitioner is

not at fault. He has submitted that during the inquiry, his

statement was recorded which is not in consonance with the law

and was not given any opportunity of cross-examining the

persons from the alleged association, who has issued the First

Aid Certificate. While inviting the attention of the Court to the

observations made by the Labour Court to the effect that during

the interregnum period, the workman was working, he has

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

submitted that it is erroneous.

4. According to Mr.Tiwari, learned counsel, the workman has

filed an appeal before the competent authority but the appeal

came to be dismissed and, therefore, he filed reference before

the Labour Court. According to him, the workman is holding

genuine certificate of the First Aid which he has submitted before

the authority. He has submitted that the observations of the

Labour Court in dismissing the reference is factually as well as

legally not tenable. He has prayed to quash and set aside the

impugned award and allow the present petition and the

respondent be directed to reinstate the workman with full back

wages.

5. Per contra, Mr.H. C. Rawal, learned counsel for respondent

No.1 - Corporation has submitted that the workman has not

challenged the inquiry and in his cross-examination, he has

accepted that the inquiry was legal and valid. He has submitted

that without challenging the departmental inquiry, the petitioner

has challenged only punishment imposed upon him for

production of the false certificate of the First Aid. He has also

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

submitted that the concerned institution has informed the

Corporation that it has never issued such certificate to the

petitioner herein. While inviting the attention of the Court to the

observations of the Labour Court as well as findings of facts by

the inquiry officer, Mr.Rawal, learned counsel has vehemently

submitted that the inquiry was conducted in proper manner and

this Court may not interfere with the findings of facts of the

Tribunal under Article 227 of the Constitution. He he submitted

that it is for the employer to impose punishment in departmental

inquiry and the Court cannot substitute its decision and cannot

work as an appellate authority over the order of punishment

imposed upon the employee. He has submitted that in the

present case, the petitioner has not challenged the departmental

inquiry at all and has only requested to impose lesser

punishment. While relying upon the following decisions,

Mr.Rawal, learned counsel has prayed to dismissed the present

petition.

1. Ex Sig. Man Kanhaiya Kumar Vs. Union of

India and others, (2018) 14 SCC 279;

2. Management of State Bank of India Vs.

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

Smita Sharad Deshmukh and another,

(2017) 4 SCC 75;

3. Ram Saran Vs. IG of Police, CRPF and

Others, (2006) 2 SCC 541;

6. Mr.Soaham Joshi, learned Assistant Government Pleader for

respondent No.2 has supported the arguments of Mr.H. C. Rawal,

learned counsel for respondent No.1 - Corporation and has

submitted that there is no illegality committed by the Labour

Court in passing the impugned award and, therefore, the petition

may be dismissed.

7. In rejoinder, Mr.Tiwari, learned counsel for the petitioner

has submitted that the decisions relied upon by Mr.Rawal,

learned counsel are not applicable to the facts of the present

case. He has submitted that in the present case, the question is

relating to genuineness of the certificate and therefore, the

punishment imposed upon by the authority is not consonance

with the genuine mistake committed by the petitioner. He has

submitted that the mistake committed by the workman is

inadvertent mistake and for that purpose, the order of dismissal

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

is not proper.

8. In the case of Ex Sig. Man Kanhaiya Kumar (supra),

while referring to its earlier decision in the case of Union of India

Vs. M. Bhaskaran, 1995 Supp. (4) SCC 100, the Supreme Court

has observed that if any employment obtained by committing

fraud, the same cannot be countenanced by a court of law as the

employment secured by fraud renders it voidable at the option of

the employer.

9. In the said decision, while referring to the decision of Ram

Saran v. CRPF, (2006) 2 SCC 541, the Apex Court has observed in

para-8 as under:-

8. The courts should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Associated Provincial Picture Houses Ltd v. Wednesbury Corpn., (1947) 1 KB 223 : (1947) 2 All ER 680 (CA) commonly known as Wednesbury case (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision - making process and not the decision. (see V. Ramana v. A.P. SRTC, (2005) 7 SCC 338).

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

10. In the case of Management of State Bank of India

(supra), the Apex Court has held in para-5 as under:-

"5. It is well-settled principle that the High Court will not reappreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at. (See Union of India v. H. C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364)."

11. In the case of Ram Saran (supra), the Apex Court while

referring to its earlier decision in para-8, has observed that the

scope of judicial review is limited to the deficiency in the decision

- making process and not the decision. The courts should not

interfere with the administrator's decision unless it was illogical

or suffers from procedural impropriety or was shocking to the

conscience of the court, in the sense that it was in defiance of

logic or moral standards. The court would not go into the

correctness of the choice made by the administrator open to him

and the court should not substitute its decision to that of the

administrator.

12. Having considered the submissions made on behalf of both

the sides as well as legal aspects as reflected in the aforesaid

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

decisions and the factual matrix, it is undisputed fact that the

petitioner herein was appointed as a conductor after following

due process and initially, he was posted at Mehsana and,

thereafter he was transferred to Dwarka Depot. It is undisputed

fact that the departmental inquiry was initiated against the

petitioner for submitting false certificate of First Aid at the time

of his appointment. It emerges from the materials placed on

record that during the cross-examination of the petitioner in

Departmental Inquiry, he has accepted that the departmental

inquiry was legal. It is also appears from the record that

according to the petitioner, he has got the certificate after

paying Rs.400/- to the unknown person. This very fact suggests

that he got certificate from unknown person. It is also admitted

fact that the petitioner has not challenged the procedure

adopted by the Corporation in initiation of the departmental

inquiry as well as entire inquiry procedure. The petitioner's case

is only regarding the challenge of punishment. Before the Labour

Court, the petitioner has claimed for reinstatement with full back

wages.

13. On perusal of the materials placed on record, it appears

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

that on inquiry, the concerned association has clearly informed

the Corporation that it has never issued the First Aid Certificate

to the petitioner. This very fact suggests that at the time of initial

employment as a conductor, the petitioner has produced false /

fabricated certificate of the First Aid which was never issued by

the concerned association. Thus, the employment of the

petitioner is clearly based on the false certificate. Therefore, the

observations made by the Corporation in departmental inquiry as

well as the observations made by the Labour Court cannot be

termed as illegal. Of course, in the reasoning part, the Labour

Court has committed mistake in observing that the petitioner is

employed from the date of his dismissal at the time of his

deposition. On perusal of the cross-examination of the petitioner

before the Labour Court, it clearly transpires that he has

categorically denied that he is in employment and he has

specifically stated that his brother is in an employment and he is

not employed anywhere. However, the Labour Court has

committed mistake in observing that the petitioner has admitted

that he is in employment. Be that as it may, the fact remains

that to get the employment, the petitioner has produced false

certificate of the First Aid which was never issued by the

C/SCA/1653/2013 JUDGMENT DATED: 25/06/2021

concerned association. Therefore, no fault can be found on the

part of the Corporation for initiation of Departmental Inquiry and

imposing punishment as the employment of the petitioner was

based on false / fabricated certificate. Further, the decisions of

the Labour Court cannot be termed as perverse. The same is in

consonance with proved facts and on legal aspects. Therefore,

the same is sustainable in the eyes of law.

14. In view of the aforesaid facts and circumstances of the

case, this Court is of the considered view that the present

petition is liable to be dismissed and accordingly, it is dismissed.

The impugned award dated 06.11.2012 passed by the Labour

Court, Jamnagar in Reference (L.C.J.) No.17 of 2008 is hereby

confirmed.

15. Rule is discharged. Interim relief, if any, stands vacated.

Sd/-

(DR. A. P. THAKER, J) V.R. PANCHAL